Defamation

Telnikoff v Matusevitch

If D shows, in the objective sense, that the statement was one which could be honestly held by a fair-minded third party the court will presume his statement of opinion was honestly held. This is, of course, unless C pleads and prove express malice. (Telnikoff wrote an article in the Daily Telegraph criticising the BBC Russian Service for over-recruiting people from ethnic minority groups. Matusevitch replied accusing the claimant of being a racist. Held, he had to show that the comment was based around the article, which would make it fair comment as it was possible most people wouldn't know why he was making such a statement.) *There is no need for the perpetrator of the comment to "actually" believe in it as in court the comment will be measured according to an 'objective' test: whether someone could have expressed the commentator's defamatory opinion upon the facts known to the commentator.

Spiller v Joseph

Where adverse comment was made generally or generically on matters that were in the public domain, the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it was based, for the defence of honest comment to succeed. It is not a prerequisite of the defence of honest comment that the readers should be in a position to evaluate the comment for themselves.

Reynolds v Times Newspapers

"duty" to publish only exists where: 1. The story is well-researched and balanced 2. The matter is serious

#DEFAMATION#

#DEFAMATION#

#PRIVILEGE#

#PRIVILEGE#

Four forms of slander actionable per se

1) imputation of a criminal offence punishable by imprisonment 2) imputation of a contagious disease, for example, leprosy or plague 3) imputation of unchastity or adultery by a female (s.1, Slander of Women Act 1891) 4)imputation of unfitness or incompetence (s.2, Defamation Act 1952). [extends to all words likely to disparage C's official, professional or business reputation, whether or not the words relate to the C's office, profession, calling, trade or business]

Knuppfer v London Express Newspaper

A class of people cannot be defamed unless (the exceptions) it's a sufficiently small group where C can establish that the statement must apply to every member, or C can identify some particular reference which singles him out. (publication said the group was fascist in step w/ the Third Reich. C claimed his position as head was enough to single him out from the group. Held, too many members to construe this statement as referring to anyone in particular.)

Adam v Ward

A privileged occasion is where the person who communicates has an duty or interest that is social, moral, or legal to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it.

S.14 Defamation Act 1996

Absolute Privilege: no defamation in Parliament, in court, or in a client-attorney correspondence.

Cassidy v Daily Mirror Newspapers

An ad can be actionable on the basis of true innuendo. (Published photograph saying Cassidy and woman were engaged, though he was already married to C who later alleged the words imputed 'by innuendo' that C was immorally cohabiting w/ Cassidy and that several friends thought this to be the case. It was no excuse that the newspaper didn't know he was already married, and was in fact told by Cassidy that he was engaged to the woman w/ whom he'd been photographed.)

Monson v Tussauds

Anything which has a permanent of lasting form can be libel including waxwork, an effigy or chalk marks on a wall. (a wax statue was capable of being libel)

Vizetelly v Mudie's Select Library

At common law, a defence of innocent dissemination is available to a person who, neither knowingly nor negligently, had merely a subordinate role in the dissemination of the matter containing the defamatory statement. To succeed, C must show: (1) that he was innocent of any knowledge of the libel contained in the work disseminated by him, (2) that there was nothing in the work or the circumstances under which it came to him or was disseminated by him which ought to have led him to suppose that it contained a libel, and (3) that, when the work was disseminated by him, it was not by any negligence on his part that he did not know that it contained the libel... then, although the dissemination of the work by him was prima facie publication of it, he may nevertheless, on proof of the before-mentioned facts, be held not to have published it. But the onus of proving such facts lies on him, and the question of publication or non-publication is in such a case one for the jury." (library provided a book which turned out to be defamatory. The issue was whether the library can claim protection under innocent dissemination.)

S.4 of Limitation Act 1980

Both parties must be alive and claims must commenced within 12 months of statement being made

Three elements of defamation

Claimant must prove all three: 1. Statement is defamatory 2. It refers to C 3. It is published

Cruise v Express Newspapers Plc

Common sting and Distinct sting: Where D makes multiple allegations that share a common sting the defence of justification may succeed if he is able to prove one. However, wher the words contain multiple distinct charges the basic rule is that if the defence of justification is to succeed D must justify every innuendo. Note: where a publication contains two or more separate and distinct defamatory statements, C is entitled to select one of them for complaint, and D is not entitled to assert the truth of the other(s), essentially ignoring the one complained about, by way of justification. (said Tom Cruise was gay, marriage was a sham, etc)

Cookson v Harewood

Consent (Defence) If C expressly or impliedly assents to the publication of matter which is true on the face of it, D can rely on the complete defence of consent. (D published a true statement that C had been warned off all pony racing tracks under their control. C argued that by innuendo this meant he had been guilty of corrupt and fraudulent practices. However, C had submitted to the rules of the Pony Turf Club which D controlled and one of these rules was that the stewards of the club might, in their absolute discretion, warn off any person - therefore C consented.)

Godfrey v Demon Internet

Defamatory material on internet is libel. If ISP does not remove defamatory content, it becomes a publisher and can be sued.

Qualified privilege

Exists at common law and under statute. "A defence to the publication of defamatory statements which may be false but which warrant protection from an action in defamation because the occasion on which they are made demands that they be made freely with the prospect of litigation removed." Exist in situations such as where old employer writes a reference and sends it to a new employer. The former employer is under a social duty to provide such a reference and the new employer has a keen interest in receiving the reference.

Derbyshire CC v Times Newspapers Ltd

Governmental bodies cannot sue for defamation.

Alexander v North Eastern Railway

It is not necessary for D to prove that the facts alleged were literally true, but it must be substantially true, as partial justification is not a defence. (D said C was sentenced to a fine or 3 weeks imprisonment; it was actually 2 weeks, thus substantially true. C argued the overstatement made it appear as if the offence was worse than it was.)

Berkoff v Burchill

It's what the reasonable man would understand, not what D intended the words to mean. (journalist wrote actor as hideously ugly, held defamatory)

Judge and Jury

Judge: (Questions of law) will determine whether the words are capable of being defamatory. Could the conduct of D be viewed as malicious? Jury: (Questions of fact) will decide if the words "are" defamatory? What level of damages should be awarded? Was D in fact malicious?

Hulton v Jones

Liability for libel does not depend upon the intention of the defamer, but on the fact of defamation. (published fictional story abt a churchwarden; Barrister had the same name and jury said a reasonable person would think it was the barrister)

Thomas v Bradbury, Agnew & Co

Malice: Where C proves D's comment was motivated by malice, despite that in all other aspects the comment may be fair, this would defeat the defence of fair comment. The question is: Were the comments made only to harm the claimant? A publication made 'maliciously' (spitefully, or with ill-will or recklessness as to whether it was true or false) will destroy the defence of fair comment.

Horrocks v Lowe

Malice: The burden on C to establish malice on the part of D is a heavy one. It must be shown that he did not have a positive or honest belief in the truth of what he published, or, if he did believe it when uttered on a privileged occasion, that he 'misused the occasion for some purpose other than that for which the privilege is accorded by the law' An honest belief in the truth of the disparagement, or whatever shape the falsehood takes, is sufficient to negate liability unless the freedom to speak the truth is being misused.

Unintentional defamation

Offer of Amends Defence Sections 2-4 of the Defamation Act 1996 establish a procedure whereby a person who inadvertently defames another can publish an apology and correction and possibly pay an agreed sum of compensation to C. The person making the offer need not rely on it as a defence, but if he does, s.4(4) specifies that he may not rely on any other defence. In any event, any offer may be relied on in mitigation of damages: section 4(5).

Section 4(1) of the Theatres Act 1968

Performances of a play (except when given on a domestic occasion in a private dwelling) shall be treated as publication in permanent form and therefore libel.

Goldsmith v Boyruh

Political parties cannot sue for defamation

London Artists v Littler

Re plea of honest comment, particularly public interest: Matters of public interest is not restricted to issues concerning the public, but matters they are legitimately interested. Giving the ever-increasing culture of celebrity this would include the comings and goings in the theatre industry. The defence of honest comment only applies to statements of opinion. (D wrote a letter to several actors who'd just quit a play saying it was a plot to shut down the play)

Lynch v Knight

Regarding slander, the damage must be 'fairly and reasonably anticipated', i.e., the loss must not be too remote. (wife accused of gross levity by step-brother and that she was almost seduced by a man. Husband sent her away and she alleged that her lost of consortium was special damage)

Charleston v News Group Newspapers

The 'antidote' to a defamatory comment must be elsewhere in the article where the reader is likely to see it.

Kiam v MGN

The court will not interfere with the sum of damages awarded unless the sum was out of all proportion to that which sensibly could be regarded as appropriate.

Interlocutory injunction

The courts are reluctant to grant injunctions prior to trial (interlocutory injunctions) as this would amount to a restriction of freedom of speech w/o the benefit of full consideration by the court. As stated in Bonnard v Perryman, the court has the jurisdiction to restrain by injunction the publication of a libel, but the exercise of this jurisdiction is discretionary. An interlocutory injunction should therefore not be granted except in the clearest cases, and should not be granted when D swears that he will be able to justify the libel and the court is not satisfied that he may not be able to do so - Holley v Smyth. The court's discretion to grant interlocutory relief would not ordinarily be exercised to restrain a libel where D had a defence or claimed justification, unless C had proved that the libel was plainly untrue.

Kemsley v Foot

The defence of honest comment will fail if based on misstatements of fact. Put another way, for an opinion to be honest comment it must be based around true facts.

Four requirements of the Defence of Honest comment

The fair comment defence is sometimes known as "the critic's defence" as it is designed to protect the right of the press to state valid opinions on matters of public interest. However, fair comment and justification defences will fail if they are based on misstatements of fact (Kemsley v Foot ) Comment must be in the public interest - London Artists v Littler The comment must be an opinion based on true facts - Kemsley v Foot Must be honest and fair - Telnikoff v Matusevitch Comment must not be malicious: Thomas v. Bradbury, Agnew & Co Ltd *Failure to show one of these will result in the claim failing. Honest comment on a matter in the public interest is a full defence like justification. The defence of honest comment only applies to statements of opinion ('I think ...') and not expressions of fact ('The truth is ...'). There are no 'true' opinions, only 'fair' opinions. The court will look at the manner in which the statement was said, were the words like 'it seems' or 'it may be' used. If D says "X is happening", this would be a statement of fact, and he would therefore need the defence of justification as honest comment would fail.

Lewis v Daily Telegraph Ltd

The general test is would the reasonable person view the statement as defamatory on the particular facts of the case? Where a reasonable person would infer from a publication that C is a suspect but not assume them to be guilty, this is not liable. Investigation is not inference of guilt. (fraud-squad inquiry w/ firm, innuendo, yes, but wouldn't cause reasonable man to suspect they were guilty)

Milne v Express Newspapers

The judge held that the journalist had to have been malicious, in the sense he was recklessly indifferent to the truth, at the time of publication. (Article suggested that a solicitor may have lied to a parliamentary committee. In an effort to avoid prolonged and expensive litigation, D, the newspapers, responded to C's written complaint by making an unqualified offer of amends under Section 2 of the Defamation Act. C rejected.) By making an unqualified offer of amends, D was allowing the amount of damages and the form of any apology to be settled by the court if they could not settle the matter with C. The making of the offer of amends ordinarily acts as a defence to defamation proceedings should C reject it, but there are limitations. Under s.4 of the act a person who makes an offer of amends will not be able to rely on it if he or she "knew or had reason to believe" that the statement complained was false and defamatory. What a person knows or has reason to believe at any given time depends on the facts available at the time and, unsurprisingly, in the time-pressured world of journalism, facts cannot always be triple checked before a copy deadline. Held, the statute is an exit route for journalists who have made a mistake and are willing to put their hands up and make amends. There will be no "offer of amends" defence for journalists who know that what they are alleging is untrue. Nor will the defence be available to those who choose to ignore or shut their mind to information which should have led them to believe an allegation to be false. So the defence won't help the dishonest, but to the conscientious journalist and even the careless but honest journalist, it may prove valuable.

McManus v Beckham

The original defamer will be further liable for republication if (a) D was aware when he made the statements that there was a significant risk that the "sting" (not necessarily the exact words) would be repeated - this would mean she intended for it to be repeated or authorized the republication. (b) and if a reasonable person in D's position would have appreciated that such a risk existed. (Victoria Beckham said the signature in a novelty shop purporting to be her husband's was fake; it was reported)

Lowe v Associated Newspapers

The ultimate test of honest comment is an objective one of whether someone could have expressed the commentator's defamatory opinion upon the facts known to the commentator, at least in general terms, and upon which he was purporting to comment.

Remedies

There are two main remedies: damages and injunctive relief. Damages are assessed by the jury. They may include an award for aggravated damages (where the defendant's conduct has led to additional mental distress) and exemplary damages (where D deliberately sets out to profit at the expense of the C's reputation).

Defamation

There are two types of defamation: • Libel - something which is in a permanent form e.g. in writing, images, film or recording and anything said on stage or in a broadcast. Libel is actionable per se , which means actionable w/o any proof of damage. • Slander - spoken words usually said in a conversation. Slander will require proof of special damage, except in four situations.

Sim; Youssoupoff

To be defamatory, a statement must 'tend to lower C in the estimation of right-thinking members of society generally' (Sim v Stretch) or lead to C being shunned or avoided (Youssoupoff v MGM Pictures Ltd)

Reynolds v Times Newspapers (Reynolds Test)

To rely on the defence of Qualified privilege at common law, D must satisfy this test of responsible journalism: 1) seriousness of allegations; 2) is it a matter of public concern? 3) sources reliable? 4) steps to verify? 5) status of the info - has it been proven wrong? 6) urgency of info 7) has the j sought comment from claimant 8) is the gist of C's view given 9) tone of article 10) the general circumstances and timing of the publication The test is one of 'responsible journalism' for the newspaper to demonstrate to the court that they deserve the defence of qualified privilege by satisfying the 10 criteria. - not an easy test to satisfy.

Innuendo

True innuendo arises when words that appear to be innocent to some people appear as defamatory to others because they possess special knowledge or extra information. Put another way, the attack is truly hidden in the absence of special facts and circumstances (meaning some people do not know the particulars), which C must show are known by some of the people to whom the statement is published. False innuendo is one which a reasonable person guided by general knowledge would infer from the natural and ordinary meaning of the words. The general test is would the reasonable person view the statement as defamatory on the particular facts of the case?

S.5 of Defamation Act 1952 - (Defence)

True statements cannot be defamatory. *Defamatory statements are presumed to be untrue, unless the D proves otherwise. Truth (or justification) is thus seen as a defence.

Morgan v Odhams Press

Where C isn't named in the defamatory statement, that is, D makes general statements allegedly referring to C, C will have to prove that an ordinary reasonable person, w/ knowledge of all the circumstances, would recognise that the person referred to is C. Identification by innuendo. (dog-doping witness said to be kidnapped by C)

S.8 of the Courts and Legal Services Act 1990

Where the award of damages are notoriously this section now empowers the CoA to substitute its own figure of damages for that of the jury without the need for a retrial.

Theaker v Richardson

Where the defamatory statement was meant to be a private, that is, between C and D, if it is reasonably foreseeable that it will come to the knowledge of a third party D will be liable. (D wrote letter and put it in C's post box calling C a lying low-down brothel-keeping whore and thief; C's husband read believing it was an election address due to it's envelope.) *cf. Huth v Huth (Butler, being nosy, read letter. Held, it wasn't foreseeable that the butler would read it) *The courts will presume, in the absence of evidence to the contrary, that written statements will be read by third parties and are therefore published. Therefore, if words are placed in an envelope which is sealed and marked 'private, it would not be considered foreseeable that a third party would ignore this and open the letter.

Section 10 Defamation Act 2005

• The dead cannot be defamed no matter how distressing to the relatives and friends. • If, however, it affects the family they may bring an action: Krahe v TCN Channel Nine Pty Ltd (1986)